This is part of a series of responses to myths, misconceptions, and misstatements about jury issues, including jury nullification and juror education outreach. There are no lawyers on FIJA’s staff or board of directors, and FIJA does not provide legal advice. These observations are provided for educational purposes and do not in any way constitute legal advice.

Last week I read an error-riddled article claiming that jury nullification doesn’t work. This gives me the opportunity simultaneously to correct the errors therein and also to dispel some more myths and misconceptions about jury nullification. The one I will tackle today is about whether or not jurors can be punished for exercising jury nullification. In the ill-informed article, the author claimed that jurors are liable to be punished by a judge for conscientiously acquitting, briefly name checking only the case of Laura Kriho in 1996 and presenting nothing else to substantiate the claim.

To briefly recap, Laura Kriho was the lone, holdout juror in the drug-related case of People v. Brannon in Colorado. She was initially charged with three counts of contempt of court after a fellow juror wrote a note to Gilpin County District Court Judge Kenneth Barnhill complaining about her deliberations and asking that she be replaced by an alternate juror. By this time, however, the judge had dismissed the alternates and instead declared a mistrial. Two months later, Kriho was initially charged for:
1. failing to volunteer information that was not directly asked for during voir dire,
2. informing fellow jurors about what she learned online regarding the potential punishment if they convicted the defendant, and
3. trying to persuade fellow jurors to nullify one of the charges against the defendant.

The author citing this case as evidence of jurors being punished for nullifying failed to mention that the second and third charges against her—including the one for discussing nullification—were withdrawn, with no punishment whatsoever. Further, had the author followed up on this case, he would have found that her conviction on the single remaining count was overturned in 1999 by an appeals court, as FIJA reported in its newsletter:

In the errant article, the author specifically said that jurors are “liable” to be punished for nullification, perhaps intending to suggest that it is likely that jurors would be so punished. Historically, that is simply not true. Kriho’s attorney, Paul Grant, point out that, “You have to go back to [the trial of William Penn in] 1670 to find a case in which the judge tried to punish jurors for returning a verdict he didn’t like.” Since the Kriho case, I am aware of only one other case in which a juror faced a serious possibility of being punished for her verdict—the 2005 prosecution of juror Carol Asher.

Asher was one of four jurors who maintained a Not Guilty vote in the prosecution of William Edward Clark, prosecuted in the state of Idaho over .15 of a gram of meth, the street value of which was in the neighborhood of $5. The evidence was found in a company vehicle which was not owned by Clark and which was used by many people. No evidence was ever presented which linked Clark to the drugs, Asher pointed out. In addition to the lack of evidence, Asher further had doubts about the legality of the search being performed without a warrant and without the defendant’s consent and mentioned this during deliberations. The jury foreman, she says, argued that the judge had already ruled that the search was legal and that the jurors could not consider that. According to Asher, she and the jury foreman had a different understanding about what their purpose was, with the foreman insisting they were to not to impede the state’s power and Asher arguing that their role was to uphold the law rather than to rubber stamp the prosecution.

In the course of deliberations, Asher mentioned that she answered to a higher authority than just the judge and was bound by her conscience to render a just verdict, to which the jury foreman reportedly responded that she could be charged with perjury. In the end the jury remained split and a mistrial resulted, upon which time the jury foreman reportedly tattled to the judge about Asher’s comments during deliberations. Despite three other jurors also agreeing the defendant was not guilty, Asher alone was subsequently prosecuted for felony perjury, putting her at risk for up to 14 years in prison. Asher’s case never made it to trial. Rather, it was hastily dismissed in early 2006 after an evidentiary hearing.

So what is the big picture here? In nearly two decades, there are just two jurors that I am aware of being prosecuted for their verdicts, with both prosecutions failing and courts upholding the long-standing tenet of our legal system that jurors cannot be punished for their verdicts. That means that still today jurors cannot be formally punished for their verdicts, and the risk of de facto punishment in the form of having to fight legal charges is extremely low, even for jurors who openly discuss jury nullification and matters of conscience. And that is just two in comparison to numerous cases of modern jury nullification (many of which I will detail in another installment in this series) of which I am aware, and many more that are likely taking place but are unknown due to the nature of the jury process.

Any miniscule legal risk associated with nullifying can further be mitigated simply by not discussing certain topics during deliberations. Jurors are not required to explain the reasons for their verdicts, and they can participate in deliberations by asking questions of their fellow jurors, actively listening to their responses, and if they feel the need to make some statements, they can make general comments that do not bring up the subject of nullification. Further, courts have also held that jurors cannot be dismissed for expressing doubt about a defendant’s guilt, so in cases where, for example, evidence is insufficient or entirely non-existent, witness testimony is questionable, and so on, expressing such doubt is a potential topic of deliberation.

Laura Kriho and Carol Asher are women of conscience and of courage, who stand as shining examples of the dramatic power of jury nullification, if we would only choose to use it. In each of the cases they heard, these women prevented an injustice from happening as they deliberated with just two words: Not Guilty. If they were bent on imposing injustice on these defendants, the prosecutors in these cases would have to go to the trouble and expense of starting over before another jury. It was not going to happen on their watches.

Kriho’s and Asher’s very prosecutions, and the speed with which Asher’s case was dismissed, speak to the intense fear and loathing government officials have, not only of conscientious acquittal itself, but of jurors’ right of conscience becoming common knowledge among the general public as it once was. If jury nullification were an ineffective tactic in reigning in government officials run amok trampling human rights and liberty, they would not be going to such great lengths to quash its mere mention, let alone use, in the legal system and to disparage it in the public discourse whenever it comes up.

Each and every one of you has the mettle and moral fiber necessary to claim this power as your own and to wield it for your highest purpose when serving on a jury: upholding justice, including upholding it above law when the two are in conflict. Do not be deterred by people invoking the chimera of punishment for acting in good conscience and doing what is right.